City of Wilmington v. James Sprunt & Son

Clark, J.. The charter of Wilmington (Acts 1376-’77, chapter 192) provides (section 9): “The officer charged with the duty of collecting taxes shall have all the powers vested by law in Sheriffs or Tax-collectors for the collection of taxes due the State. The Sheriff has the power to collect taxes due the State and county by garnisheeing any one indebted to the delinquent tax-payer when no tangible property of the latter can be found sufficient to satisfy said taxes.” Acts 1893, ch. 296, sec. 1. Therefore the collector of city taxes has the same power. Quod evat demonstrandum. The defendants contend that when the city charter was *312 granted in 1876 — ’77 the Sheriffs had the power to garnishee debts due to the delinquent only for non-payment of poll-taxes. This was extended by Acts 1887, ch. 137, sec. 1, to give the Sheriff the right of garnishment for all taxes. This provision has been continued in all the Revenue Acts since. The grant of the same authority to the City Tax-collector as is possessed by the Sheriff in collecting taxes provides for a continual conformity as the general law is from time to time modified. As was said by Sumí, C. J., in construing an exactly similar provision, “The required conformity of procedure on the part of the town officer to that prescribed for the Sheriff was a continual conformity, allowing any statutory changes made as far as practicable. The mandate is to the officer to pursue the course prescribed for the Sheriff in his office of collector, not only as the law then was, but as it might be amended thereafter.” Hill v. Nicholson, 92 N. C., 24, 28. And this seems to be the uniform rule. 2 Dillon Mun. Corp., sec. 772 and notes; 1 Desty Tax., 475, 476; Am. Co. v. Buffalo, 20 N, Y., 388. Nor can it be said that the tax-payer is deprived by the garnishment of “due process of law.” He is fixed with legal notice by listing his taxes; he has had opportunity to have the amount, if erroneous, or the valuation, if excessive, reduced. He has had his “day in court.” The tax-list in the hands of the officer is a judgment and execution. Acts 1893, ch. 296, sec. 30; Guilford Co. v. Ga. Company, 112 N. C., 37. Besides, this objection could only have been raised by the delinquent tax-payer for himself by proper proceedings and not by the defendant, who has been duly served with notice as provided by law. There .is no exemption of any property whatever from the payment of taxes. Const., Art. Í0, sec. 1; Tucker v. Tucker, 108 N. C., 235. The exemptions allowed to the judgment debtor by The *313 Code, §493, apply only as to proceedings on judgments for private debts and not to taxes. Even in those cases whether notice shall be given the judgment debtor rests “in the discretion ” of the Court. The Code, §490. No Error.